Murd Industries, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1987

287 N.L.R.B. 864 (N.L.R.B. 1987)

864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Murd Industries , Inc. and Teamsters Union Local
No. 115 a/w International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and
Helpers of America, AFL-CIO.' Case 4-CA-
15806 and 4-CA-15874
16 December 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 20 August 1987 Administrative Law Judge
Irwin Kaplan issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The General Counsel filed an answering brief and
cross-exceptions and a supporting brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, finding,2 and
conclusions3 and to adopt the recommended
Order.4
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Murd Indus-
tries, Inc., Philadelphia, Pennsylvania, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
' On I November 1987 the Teamsters International Union was read-
mitted to the AFL-CIO Accordingly, the caption has been amended to
reflect that change
2 The General Counsel and Respondent have excepted to some of the
judge's credibility findings The Board's established policy is not to over-
rule an administrative law judge's credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are in-
correct Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d
362 (3d Cir 1951) We have carefully examined the record and find no
basis for reversing the findings
3 In light of our agreement with the judge that the Respondent's unfair
labor practices warrant imposition of a remedial bargaining order and the
finding of an 8(a)(5) refusal-to-bargain violation, in accord with the prin-
ciples of NLRB v Gissel Packing Co, 395 US 575 (1969), we find no
need to pass on whether the Respondent also violated Sec 8(a)(5) by
withdrawing recognition allegedly extended to the Union We do not
rely on the judge's analysis of this issue
4 We agree with the judge that under the circumstances of this case it
is unnecessary to include a visitatorial clause in the Order
DECISION
STATEMENT OF THE CASE
IRWIN KAPLAN, Administrative Law Judge. These
consolidated cases were heard in Philadelphia, Pennsyl-
vania, on 14 and 15 October 1986. The underlying
charges in Case 4-CA-15806 were filed by the Team-
sters Union Local No 115, a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (Charging Party or Union) on 8
May 1986 The Union filed additional charges in Case 4-
CA-15874 on 9 June 1986. The charges in both cases
gave rise to order consolidated cases, consolidated com-
plaint and notice of hearing on 31 July 1986 and amend-
ments to consolidated complaint on 21 August 1986.
It is alleged that Murd Industries, Inc (Respondent),
unlawfully discharged 3 of its 10 unit employees: Patrick
O'Neill, William Maines, and Johnny Sanders because of
their support of the Union, in violation of Section 8(a)(3)
and (1) of the National Labor Relations Act (the Act). In
this regard, it is alleged that certain of Respondent's em-
ployees engaged in an unfair labor practice strike in pro-
test of the aforenoted discharges, which strike was pro-
longed by subsequent alleged unfair labor practices en-
gaged in by Respondent in violation of Section 8(a)(5)
and (1) of the Act. The essence of the 8(a)(5) allegation
is that about 29 April 1986, Respondent voluntarily rec-
ognized the Union as the exclusive bargaining represent-
ative for its production and maintenance employees only
to unlawfully withdraw recognition about 15 May 1986.
Further, it is alleged that in late May or early June 1986,
the Respondent independently violated Section 8(a)(1) of
the Act by making certain statements to newly hired em-
ployees, whereby, the Respondent threatened to take re-
prisals against the striking employees if they returned to
work, while promising continued employment to their
replacements, if they (the newly hired employees), refuse
to support the Union. The General Counsel requested a
remedy that includes a Gissel bargaining order. See
NLRB v. Gissel Packing Co., 395 U.S 575 (1969)
The Respondent filed an answer (amended at the hear-
ing) conceding, inter alia, jurisdictional facts and the su-
pervisory and agency status of certain individuals, but
denying that it committed any unfair labor practices. Re-
spondent also denies the appropriateness of a bargaining
order under Gissel concepts even if the allegations here
are found to have merit
Based on the record as a whole, including my observa-
tion of the demeanor of the witnesses, and after careful
consideration of the posttrial briefs, I make the following
Daniel E. Halevy, Esq, for the General Counsel
Howard K. Trubman, Esq, of Philadelphia, Pennsylvania,
for the Respondent
Norton H. Brainard, Esq., of Philadelphia, Pennsylvania,
for the Charging Party.
287 NLRB No. 88
FINDINGS OF FACT
I JURISDICTION
The Respondent, Murd Industries, Inc , a Pennsylvania
corporation, is engaged in the packaging of chemicals
with its sole office and place of business located in Phila-
delphia, Pennsylvania. During the past year, in connec-
tion with the aforenoted business operations, the Re-
spondent purchased materials in excess of $50,000 direct-
MURD INDUSTRIES 865
ly from points outside the Commonwealth of Pennsylva-
nia.
The Respondent admitted, the record supports, and I
find that it is now, and has been at all times material, an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
The Respondent admitted, the record supports, and I
find that the Teamsters Union Local No. 115, a/w Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America is, and has been at all
times material, a labor organization within the meaning
of Section 2(5) of the Act.
iI. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
The Respondent has long operated a chemical packag-
ing facility in Philadelphia, Pennsylvania In late April
1986,1 Respondent employed 10 nonsupervisory employ-
ees.2 On 28 April, at approximately 2 p.m, Arthur
Haines, Respondent's owner and president, sent home
most of his employees, apparently, because of problems
with one of the production machines. The employees
who were told to leave gathered at the home of employ-
ee Charles Dennte, where they expressed their displeas-
ure about having been sent home. Later, they were
joined by alleged discrimmatee Patrick O'Neill, one of
the few employees not sent home that day but who had
stopped by in between work-related errands.
In Dennis' home, the employees explored union repre-
sentation and O'Neill, who had some previous experience
with Local 115 (the Charging Party), recommended that
they contact that union. This was done that same day in
a phone call by employees Michael Thompson to Union
Business Representative Robert Henninger and arrange-
ments were made for the latter to meet with employees
at Respondent's facility the following day at lunchtime
On 29 April, at approximately 11.50 a.m., Henninger
appeared in front of Respondent's facility and met with
employees Thompson, O'Neill, and Maines. After some
discussion about joining the Union, the three employees
were given union authorization cards that they then
signed and immediately returned to Henninger Around
the same time Foreman William Sanders came over to
inquire about Henninger's activities and was told by the
latter that he was organizing and soliciting Respondent's
employees to sign union cards.' The three employees
told Henninger that they would direct other employees
to Henninger and departed with their foreman only a
few feet behind. Soon after, employees Charles Dennis,
Cory Dennis, and Sylvester Howard met with Hen-
ninger. Around the same time, Union President Joe
Yeoman and Business Agent Jim Oliver joined this
group. These employees also signed union cards at that
time and turned them over to Henninger. While the em-
ployees were filling out the union cards, Sales Manager
Thomas McClemmy approached Henninger. McClemmy
was told by Henninger that he was soliciting union cards
from Respondent's employees and did not want
McClemmy out there. McClemmy apparently went back
inside the plant without incident'
Henninger walked to the loading dock and met em-
ployee Johnny Sanders and got him to sign a union card.
According to Henninger's uncontradicted testimony,
Foreman Sanders (unrelated to Johnny Sanders) was
standing behind employee Sanders "practically looking
over his shoulder." Employee Sanders testified that his
foreman asked him what he was doing and he informed
him that he was filling out a union card. According to
Henninger, Foreman Sanders also watched while he,
Henninger, obtained another signed union card from em-
ployee Josh McDonald. Around this time, Business
Agent Oliver obtained a signed union card from employ-
ee Hubert Robinson.-5 In all, 9 of Respondent's 10 nonsu-
pervisory employees signed union cards on that occasion.
(G C. Exhs 2(a)-(i).)
With the signed union cards in hand, Henninger and
Oliver returned to the union office where they prepared
two standard copies of a recognition agreement with
cover letters and a representation petition. The Union
mailed a copy of the recognition agreement (G.C. Exh.
4) to Respondent by certified mail (G.C Exh 3(b)). Still
the same day, 29 April, between 2 and 3 p m., Henninger
and Oliver returned to Respondent's facility to demand
recognition
At the time Henninger and Oliver appeared at Haines'
office, Haines was engaged in a sales meeting with
McClemmy (his sales manager), and Camillo Giusti, a
customer. Inside, the union representatives handed
Haines a written demand for recognition and a copy of
the recognition agreement. They also offered to prove
the Union's majority status by showing Haines the signed
union cards According to Henninger and Oliver, Haines
went through the stack of union cards twice but refused
to do anything regarding recognition until he returned
from his upcoming vacation. Haines also assertedly
stated that he did not see any problem and believed that
matters could be worked out between them. According
to Haines, the Union's intrusion at that time was con-
frontational. Haines testified that Henninger and 'Oliver
had barged into his office waving union cards and they
also blocked the doorway to prevent anyone from leav-
ing the office for a few minutes While it is undisputed
that the union representatives offered to show Haines the
union cards and had handed him a recognition agree-
ment, Haines denied that he looked at any of the union
cards
I All dates hereinafter refer to 1986 unless otherwise indicated
2 The parties stipulated that as of 29 April, Respondent's 10 nonsuper-
visory employees were as follows Charles Dennis, Cory Dennis, Michael
Edwards, Sylvester Howard, William Maines, Joshua McDonald, Patrick
O'Neill, Hubert Robinson, Johnny Sanders, and Michael Thompson
3 Henninger's testimony regarding this encounter was corroborated,
uncontradicted, and credited The parties stipulated that William Sanders
was a statutory supervisor and agent Sanders did not testify nor was
there any reason advanced for the failure to call him as a witness
While Henninger did not identify McClemmy by name, he testified
that one of the employees referred to him as a salesman and "one of their
bosses in the plant " The parties stipulated that McClemmy was a manag-
er at all material times On the total state of this record, I am persuaded
and find that the unnamed individual was in fact McClemmy It does not
appear that anyone other than McClemmy was involved in sales Fur-
ther, while McClemmy testified, he did not rebut Henninger 's account
5 Robinson's card was erroneously dated 28 April
866 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
From Haines' office, the union representatives drove
to the Board office in Philadelphia and filed a representa-
tion petition (G C. Exh. 6), supported by 9 union cards
(G.C. Exh 7), 3 days later, employees Maines, Sanders,
and O'Neill were terminated That same day, Haines
started his vacation According to Haines, Maines and
Sanders were hired as temporaries and, given a drop in
business orders, they were no longer needed and laid off.
Haines asserted that O'Neill was discharged because he
was physically unable to lift heavy drums (filled with
mixed chemicals), as required, and Haines was fearful of
dealing with another workmen's compensation claim.6
That evening O'Neill phoned Henninger and informed
him of the terminations. Henninger told O'Neill to as-
semble the employees to meet him Monday morning out-
side Respondent's facility
On Monday, 5 May, around 7.30 a.m, Henninger met
with Respondent's employees and they decided to strike
to protest the discharges of O'Neill, Mames, and Sand-
ers The employees commenced picketing that morning
with signs identifying Respondent with unfair labor prac-
tices
Haines returned from his vacation and next appeared
at Respondent's facility on the morning of 12 May The
employees were still picketing and Haines and Oliver
spoke briefly about ending the strike and settling the dis-
pute Oliver proposed that Haines sign the recognition
agreement According to Oliver, Haines told him that he
did not know where he had placed the recognition
agreement but that if Oliver came back the following
day, he, Haines, would have the document signed
Haines' account of that brief meeting was limited to an
acknowledgement that Oliver asked Haines to sign a rec-
ognition agreement to settle the dispute.
The next morning, 13 May, Haines conditioned recog-
nition on the withdrawal of the unfair labor practices
charges and he had to know the cost factors. According
to Henninger and Oliver, Haines already had a signed
recognition agreement in his hand (denied by Haines)
That afternoon Haines met with Henninger and obtained
another copy of the recognition agreement. According
to Henninger, Haines told him that he had lost his other
copy Haines testified that he merely asked Henninger to
produce another copy because he, Haines, did not have
the document with him at the time. Sometime over the
next few days, Haines and Henninger agreed to meet at
the union office to discuss more fully recognition and a
contract to settle the overall dispute.
On 15 May at approximately 2 p.m, Haines, accompa-
nied by McClemmy, met with Henninger and employee
Charles Dennis at the union office. According to Hen-
ninger and Dennis, Haines displayed a signed copy of the
recognition agreement but would not turn it over to
Henninger. Haines denied that he had ever signed a rec-
ognition agreement Also in dispute is the nature of the
ground rules at the meeting and whether the parties ac-
tually negotiated.
r, Haines was then involved in the workmen's compensation claim of
former employee John Earp The termination of O'Neill, Sanders, and
According to Henninger, Haines agreed to negotiate,
starting at the top or beginning of the Union's standard
contract and continuing along in sequence article by arti-
cle. Further, Henninger asserted that Haines agreed and
understood that an "Ok" placed next to any of the arti-
cles represented agreement by the parties 7 Haines, on
the other hand, denied that he negotiated or that he
agreed to any of the substantive terms Rather, Haines
maintained that he made it clear that any bargaining rela-
tionship and/or contract turned on the amount of the
cost package. Haines noted that Henninger insisted on
following the Union's practice of discussing noneconom-
ic provisions first and that he, Haines, reluctantly went
along with that procedure but only with respect to gen-
eral language. After approximately 2 hours, the meeting
came to a close before the parties reached the money
items Haines and Henninger agreed to meet the follow-
ing afternoon but Haines canceled the meeting.
Henninger testified that he spoke to Haines next, on
the picket line, the following Tuesday, 20 May, when
Haines told him that he canceled their meeting because
he had to meet a Board agent over the Union's charges
Haines also assertedly told Henninger that he was upset
over the charges and would not give the Union a recog-
nition agreement. The parties have not gotten together
since, the strike was still in progress at the time of the
trial.
About 29 May, Haines hired two or three new em-
ployees as replacements Soon after, the number of re-
placements reached 11 or 12. Haines had his replace-
ments sign typed form statements stating in relevant part
as follows:
At the time of my employment I was told that I
would be a permanent replacement, and that I
would maintain my job if and when the strike ends.
I understand that if "the Murd Company," is re-
quired to rehire the people on strike because of the
labor laws, or enters into a settlement with Team-
sters Local #115, my job may not be permanent
[See, e.g, R. Exh 10 ]
On two different occasions in June, Haines spoke to
his replacements as a group about continued employ-
ment. The replacements asked for these meetings because
of confusion over their employment status in the event
the striking employees returned to work As testified by
Haines, he told the assembled replacements that "if the
Union won the election, all or part of them [replace-
ments] could lose their ,lob[s]." Haines also indicated that
it was "likely" that an election would be held at some
unspecified date "but they would be employed until at
least an election was held " Three of the replacements,
Richard Hardy, Andre Holiday, and Dwayne Lister also
gave their accounts of the meeting. In essence, a com-
posite of their testimony is that Haines pointed out that
as there were more replacements than strikers, the re-
placements could not lose if they voted against the union
and they could remain employed Lister testified that im-
Mames are alleged to be violative of Sec 8(a)(3) and will be discussed ' An "OK" appears on Henninger's copy next to certain provisions in
more fully separately infra arts i, V-IX, XVI, and XVII (G C Exh 10)
MURD INDUSTRIES 867
mediately after one of these meetings, in a brief'conver-
sation with Foreman Sanders, the letter made- a similar
statement about the replacements numerical advantage
over the strikers in an election Further Lister testified
(after looking at the affidavit) that Foreman Sanders dis-
couraged him from any contact with the pickets 8
B Discussion and Conclusions
1 Credibility
This case turns largely on the credibility of Arthur
Haines, Respondent's president and owner In this con-
nection, it is noted, that the complaint does not allege,
nor does the record disclose, that the Respondent, and
Haines in particular, made any threats or coercive state-
ments prior to the alleged discriminatory discharges of
O'Neill, Sanders, and Maines However, if it is deter-
mined that the reasons advanced by Haines for terminat-
ing the alleged discriminatees are pretextual, such deter-
mination would support an inference of unlawful motiva-
tion See Keller Mfg. Co, 237 NLRB 712, 717 (1978) ("A
pretextual reason, of course, supports an inference of an
unlawful one")
According to Haines conclusionary and largely unsup-
ported testimony, the decisions to layoff three employees
was dictated by a drop in customer orders and overall
work for the week of 5 May s Haines denied that their
union activities, of which he also denied knowledge,
were factors in his decision However, I am persuaded
on the basis of the total surrounding circumstances that
an inference of knowledge on the part of Haines of sup-
port for the Union by the alleged discriminatees is clear-
ly warranted For example, it is noted that the credited
and uncontroverted testimony of the General Counsel's
witnesses placed William Sanders, an admitted statutory
supervisor and agent, in the same immediate area at the
time O'Neill, Mames, and Sanders signed union cards. In
employee Sanders' case (as testified by Henninger with-
out contradiction), at the time he signed his union card,
Foreman Sanders was "practically looking over his
shoulder "
Henninger also testified credibly, with corroboration
from O'Neill and Maines, that he told Foreman Sanders
(in the presence of O'Neill and Mames), on 29 April, that
he was soliciting Respondent's employees to sign union
cards. Further, the record disclosed that shortly thereaf-
ter, and just before McClemmy and Haines had lunch to-
gether, Henninger transmitted the same message to
McClemmy I find it highly unlikely and reject Haines'
assertion (without corroboration), that neither Foreman
Saunders nor Sales Manager McClemmy told him about
these union activities In any event, it is undisputed, that
later that same day, Henninger and Oliver presented
8 Lister also noted (after looking at his affidavit), inter aha, that Haines
told the replacements that they were permanent employees and that the
strikers were fired However, on cross-examination, Lister indicated un-
certainly whether Haines had said fired or replaced In evidence are por-
tions of the affidavits of Lister and Holiday offered by the General Coun-
sel as affirmative evidence (G C Exh 11, p 1, p 2, LL I and 12 ) For
reasons noted infra, I have not relied on these affidavits as affirmative
evidence
8 The lack of documentary or probative evidence in support of Re-
spondent's economic defense will be treated more fully infra
Haines with a recognition agreement while displaying a
stack of signed union cards While I am not persuaded
that Haines-actually examined each union card, as testi-
fied by Henninger and Oliver, I find, given the size of
the unit, only 10 employees (9 card signers) and the sur-
rounding circumstances, that the record warrants the in-
ference that Haines had knowledge that the alleged dis-
criminatees supported the Union before he made the de-
cision to lay off and/or terminate them
I also find that Haines was less than forthright and
tended to exaggerate in describing his initial encounter
with Henninger and Oliver to Haines' office on 29 April.
According to Haines, while he was engaged in a sales
meeting with McClemmy and a customer (Camillo
Giusti), Henninger and Oliver "barge[d]" into his office
waving a "packet" of union cards and announced that
they intended to have Haines sign a recognition agree-
ment . Haines' assertion that Henninger and Oliver
"blocked the door so that nobody could get out for a
few minutes" is disputed by Respondent's own witnesses
Thus, McClemmy and Giusti both denied that they were
blocked at any time from leaving the office Moreover,
Giusti, contrary to Haines, also acknowledged that Hen-
ninger and Oliver (at least in the beginning) were
"polite "
Still further, I reject Haines' denial, that he signed a
recognition agreement Haines admitted receiving copies
of *three recognition agreements. Thus, Haines admitted
that he was handed a recognition agreement on 29 April,
at the time he first met Oliver and Henninger. Further,
he admitted receiving a second copy by registered mail.
Finally, Haines admitted that Henninger gave him a
third copy on 3 May.
According to Henninger and Oliver, Haines showed
them a signed copy on 13 May but told them on the oc-
casion in question that he was not yet ready to give them
the document While the testimony of Henninger and
Oliver differ in some minor respects, I find for the most
part, that they corroborated each other and that their
testimony reflected an internal consistency with the
overall credited record
As for Haines, he could only account for two of the
three recognition agreements (both unsigned) that he ad-
mittedly received. When asked to explain what happened
to the missing document, Haines remarked, "I have no
idea " Haines elaborated "I didn't know enough to treat
[the recognition agreement] with great respect I might
have taken a telephone message on the back of it for all I
know " While Haines asked that I "excuse [him] for
being flip," I find that such responses were symptomatic
and tend to militate against the reliability of his overall
testimony In short, I find Haines, inter alia, to be unre-
sponsive, elusive, implausible, and unreliable.
In these circumstances, and on the basis of demeanor
factors, I credit the General Counsel 's witnesses over
Haines when the testimony is in conflict unless specifical-
ly noted otherwise
868 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. The 8(a)(3) allegations
a. O Neill s discharge
The record disclosed that O'Neill introduced the
Charging Union to his fellow employees O'Neill had
previously supported the Union at previous jobs, and
while working for Respondent, he frequently wore a
Teamsters Local 115 hat. He testified credibly that Re-
spondent's officials had observed him wearing this Team-
sters hat at work On 28 April, when Respondent's em-
ployees first explored union representation, O'Neill sug-
gested that they contact Local 115. This was done that
same day and arrangements were made for Union Busi-
ness Representative Henninger to meet the employees
the following morning outside Respondent's facility.
On Tuesday, 29 April, Henninger, with some assist-
ance from O'Neill, obtained signed union authorization
cards from 9 of Respondent's 10 employees, including
O'Neill. This activity was undertaken in proximity and
largely in view and with knowledge of Foreman Sanders
and Sales Manager McClemmy. In fact, the credited and
uncontroverted testimony disclosed that Henninger told
Foreman Sanders, in the presence of O'Neill and em-
ployees Thompson and Maines, that he was signing up
Respondent's employees for the Union. Further, Hen-
ninger repeated this message to McClemmy, moments
later In these circumstances, I find that the record dem-
onstrated company knowledge of O'Neill's support for
the Union. However, even in the absence of any direct
link to Haines, I find an inference of company knowl-
edge is clearly warranted, given the foregoing circum-
stances and noting, inter alia, the size of the unit (only 10
employees) and that, admittedly, the Union displayed a
stack of union cards to Haines in support of its recogni-
tional claim. As the Board has noted, "[It] has not hesi-
tated to infer a respondent's knowledge of employees'
protected activity where the circumstances [clearly] war-
rant such a finding " Dr. Fredrick Davidowitz, D.D.S., 277
NLRB 1046, 1049 (1985)
Having found that O'Neill engaged in union activities
of which the Respondent was aware, I turn now to
assess another critical element, the timing of O'Neill's
discharge. Here too, the circumstances are highly suspect
and I find strongly support the General Counsel's prima
facie case. The Union's organizational activities com-
menced on Tuesday morning, 29 April, and by early
afternoon, it had obtained signed union authorization
cards from 9 of the 10 unit employees According to
Haines, that same morning, "as near as [he] could
recall," he made the decision to terminate O'Neill How-
ever, Haines testified that because "[the Company] cer-
tainly needed [O'Neill] for the last two days of the
week," he waited until Friday to terminate him
Haines asserted that O'Neill was discharged because
he was physically unable to satisfy the exigencies of the
job and Haines was fearful of a workmen's compensation
claim if O'Neill were to suffer a work-related injury At
the time of O'Neill's discharge, he had already been em-
ployed nearly 2 months and had never been warned that
his job was in jeopardy It is also noted that O'Neill
earned $1 an hour more than any other employee In
these circumstances, and for reasons discussed more fully
below, I reject Haines' reasons for discharging O'Neill,
as pretextual Further, I note that the timing of the
O'Neill discharge, without any plausible explanation sup-
ported by the record, coming so closely on the heels of
the Union's demand for recognition, clearly militates
against the legitimacy of Respondent's actions.
The last critical element to be assessed is Respondent's
animus While none of the classic forms of antiunion
animus or coercive statements are alleged to have been
made prior to the disputed discharges, the various rea-
sons supplied by Respondent, all found here to be pretex-
tual, as well as the total surrounding circumstances, justi-
fy an inference of antiunion animus and I find that Re-
spondent's action was discriminatorily motivated 10 See
Shattuck Denn Mining Corp. v. NLRB, 362 F 2d 466, 470
(9th Cir 1966); Abbey's Transportation Service, 284 NLRB
696 (1987).
Haines' reason for discharging O'Neill and laying off
Maines and Sanders are largely conclusionary, implausi-
ble, and not supported by probative documentary evi-
dence. According to Haines, on 1 May, 1 day before he
was to commence his vacation, he prepared a worksheet
for scheduling production for the following week that
revealed approximately 300 man-hours of work As Re-
spondent has some 400 man-hours available (10 employ-
ees x 40 hours), he decided to lay off 3 employees.
Haines assertedly laid off Maines and Sanders because
they were the last employees hired and O'Neill, because,
as noted previously, he was physically unable to do the
work and Haines was fearful of workmens' compensation
claim
First, I find that it is not possible to discern from the
production schedule itself (R Exh. 5), or from Haines'
conclusionary testimony, how he arrived at 300 man-
hours of work for the week of 5 May, which he asserted
necessitated the disputed layoffs. While Haines testified
that the production schedule "reflects the status of
orders . . . that were or are on the premises," his calcu-
lations regarding man-hours or work were extremely
limited, not supported by other evidence and at best,
conclusionary For example, Haines noted that the pro-
duction schedule he prepared for the week of 5 May dis-
closed that the Company had to produce only two more
drums for customer Lawrence McFadden, less than 1
days' work for three employees. However, Respondent
failed to produce production schedules for any other
week so that a comparison could be made nor did it
adduce corroborative testimony from Sales Manager
McClemmy "who kept ongoing record[s] of specific
orders " In fact, Respondent failed to provide any other
record reflecting customer orders, including that of Law-
rence McFadden, because it apparently does not main-
tain such records. Haines explained as follows-
We get a great number of [orders] over the
phone A lot of them are ongoing that there is no
written records We just continue based upon work-
10 In assessing the total circumstances, I have also noted, inter alga,
that Haines made coercive statements, reflecting an antiunion bias to the
replacements approximately I month after the disputed discharge (as will
be discussed more fully intra)
MURD INDUSTRIES 869
ing out of materials that are in the warehouse and a
lot of orders are given to us without any specific
date as to the day they will be delivered [Emphasis
added.]
Thus, is it not possible to measure the accuracy of the
document in question or verify that it represented 300
hours. In these circumstances, when Respondent relied
solely on the unsupported testimony of Haines, a witness
found otherwise to be unreliable, I find that the produc-
tion schedule in question is largely worthless and fails to
establish that only 300 man-hours of work was available
for the week of 5 May or that a layoff was warranted for
legitimate economic reasons
Respondent submitted another document to show "a
direct relationship between the amount of business (sales)
and the number of shop workers." (R Exh 6) Accord-
ing to Haines, while Respondent's sales for the months of
March and April 1986 were in excess of $38,000 and
$40,000, respectively, and substantially higher than any
of the 14 previous months, he did not anticipate that this
business surge would continue. Thus, the average em-
ployee complement of eight and nine for the months of
March and April, respectively, had to be reduced Ac-
cordingly, Respondent asserted, a layoff of three employ-
ees was in order. I find however, that the document (R.
Exh 6) that was prepared in contemplation of the instant
trial is far from complete and, in any event, does not es-
tablish any significant correlation or pattern between
sales and employee complement
It is noted, for example, that the document in question
disclosed that Respondent's sales for the month of July
1986 was in excess of $26,000 and that Respondent em-
ployed an average of five employees that month Re-
spondent's sales increased by more than $1500 the fol-
lowing month, yet, it employed one less employee Fur-
ther, 1 month later (September), Respondent's sales
dropped some $7000 but no one was laid off Significant-
ly, while Respondent contends that it did not anticipate a
continued upsurge after April 1986, the record is devoid
of supporting evidence and it is noted that the document
itself does not reflect sales for any subsequent month In
these circumstances, Haines' assertion that he anticipated
less business is merely self-serving and the document
itself is largely worthless. As noted by the General
Counsel, Haines, inter alia, apparently was not figuring
the amount of work he had promised to undertake for
longtime customer, Camillo Giusti, on Haines' return
from vacation on 12 May While Haines' negotiation
with Giusti in late April involved a sample order, Haines
described Giusti "[as] a potential customer to a high
degree "
Having found that Respondent's assertion that employ-
ees had to be laid off for lack of work is pretextual, there
remains the question of O'Neill's ability to perform the
assigned tasks.
According to Haines, O'Neill was physically unable
(knee condition) to lift 55-gallon drums filled with mixed
chemicals and weighing from 400 to 600 pounds, as the
job required. Haines was assertedly fearful that O'Neill
would injure himself as a prelude to a workmen's com-
pensation claim Approximately 3 weeks before Haines
decided to terminate O'Neill, Haines had received a re-
minder from his attorney of an upcoming hearing on the
workmen's compensation claim of former employee John
Earp (G C Exh. 13). Further, around the end of April,
Haines received another "unpleasant reminder" from the
Department of Labor and Industry regarding Earp's
workmen's compensation claim (R. Exh 7) According
to Haines, because O'Neill's physical condition "had
been getting worse" and given the recent reminders of
Earp's workmen's compensation claim, Haines decided to
terminate O'Neill in late April when Haines (assertedly)
saw O'Neill "stumble and almost fall handling a drum."
In rejecting Haines' reliance on this incident, it is noted,
inter alia, that Haines' testimony was not corroborated
nor did he bring it to the attention of O'Neill. In the cir-
cumstances of this case and for reasons noted below, I
find that Haines seized on O'Neill's knee condition as a
pretext to shield his discriminatory motivation
The record disclosed that O'Neill suffers from arthritis
in one knee and carries two screws in his hip as a result
of a car accident 6 years ago O'Neill walks with a slight
limp that becomes bothersome when the weather is
damp However, Respondent made no assertion nor does
the record disclose that O'Neill had any difficulties
working as a company driver for which job he was
largely hired to perform In that capacity he drove a
truck 2 days a month and on other occasions he drove a
station wagon, making such diverse errands as bank de-
posits and picking up rat poison. O'Neill, as a general la-
borer, also spent a substantial amount of time in the
warehouse mixing chemicals. The disputed physical
work involved removing drums from scales and then
rolling them to the shipping dock This activity occurred
every other day, when the drums were filled with chemi-
cals, and took about 10 minutes but, on occasion, lasted
up to an hour if there were as many as five or six drums
to be moved.
O'Neill candidly acknowledged that he needed assist-
ance lifting drums off the scale 1 1 However, it is noted
that these are 55-gallon drums and when filled with
chemicals weigh from 400 to 600 pounds Thus, the fact
that O'Neill needed assistance in lifting drums is attribut-
able to the nature of the task and not, as contended by
Respondent, to any physical limitation. There is a dearth
of evidence tending to show that any employee ever per-
formed this task without help On the contrary, the un-
contradicted testimony of employees Charles Dennis and
Michael Thompson confirmed that employees routinely
required assistance when lifting such drums. In short,
Haines' assertion that O'Neill was physically unable to
perform the job as required is not supported by credible
evidence.12
i i In assessing O'Neill's overall credibility, I find him to be responsive,
consistent, forthright, and note that his testimony in material areas was
largely corroborated As I was also impressed with his demeanor, i credit
him in all material respects
12 Haines admitted observing O'Neill commute to work on a bicycle
This factor also tends to militate against any finding that O'Neill's leg or
knee condition hampered his ability to perform physically at work as re-
quired -
870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Having rejected Haines' testimony regarding O'Neill's
physical limitations to work as required, I turn now to
consider whether Haines' decision to terminate O'Neill
was influenced by the workman's compensation claim of
former employee John Earp Here too, I find Haines' tes-
timony implausible and incredible 13 Thus, the record
disclosed that Haines was aware of Earp's claim some 3
or 4 months before O'Neill's discharge In fact, 3 weeks
earlier, Haines has received a letter from his attorney re-
minding him of an upcoming hearing involving Earp's
claim Yet, in the face of this knowledge, Haines permit-
ted O'Neill to continue to work but sent most of the
other employees home, when, on 28 April, problems de-
veloped with the labeling machine The next day the
Union first appeared on the scene and signed up nearly
all the Respondent's employees, including O'Neill, and
demanded recognition. As O'Neill had never been told
that his job was in jeopardy, I find it highly unlikely and
reject Haines' denial that his decision that same day to
discharge O'Neill was unrelated to union activities
In sum, I find that the General Counsel has demon-
strated all the elements necessary to satisfy a prima facie
case of unlawful motivation, and, on the other hand, the
Respondent has failed to show that it would have termi-
nated O'Neill notwithstanding his union activity See,
Wright Line, 251 NLRB 1083, 1089 (1980). Accordingly,
I find that Respondent terminated O'Neill in violation of
Section 8(a)(3) and (1) as alleged.
is warranted regarding Respondent's actions in laying off
Maines and Sanders on the same day it discriminatorily
discharged O'Neill
As the General Counsel has demonstrated union activi-
ty, company knowledge, timing, and at least, an infer-
ence of antiunion animus, I find that his burden under
Wright Line, supra, has been met Having previously re-
jected Respondent's contention, unsupported by credible
evidence, that layoffs were mandated by a downturn in
business orders, I further find that Respondent failed its
Wright Line burden by showing that Maines and Sanders
would have been laid off on 2 May notwithstanding their
union activities Accordingly, I find that Respondent laid
off Maines and Sanders in violation of Section 8(a)(3)
and (1), as alleged.
c. The unfair labor practice strike allegation
The record clearly established that the strike that com-
menced on 5 May occurred to protest the discharges of
O'Neill, Maines, and Sanders Having found that Re-
spondent discharged the aforenamed employees in viola-
tion of Section 8(a)(3), a fortiori, I find that the strike
was an unfair labor practice strike, as alleged Further, as
the strike was still in progress at the time of the instant
trial and as Respondent has not fully remedied the unfair
labor practices, I find that the strike was caused and pro-
longed by the Respondent, as alleged.
b, Discharge of Maines and Sanders
The record disclosed that Maines and Saunders were
hired as general laborers on Friday, 25 April, and
Monday, 28 April, respectively According to Haines,
they were hired mainly because of "a big onslaught of
business at the end of April." Yet, 1-week later, both of
them were laid off for lack of work, the same day Haines
discriminatorily discharged O'Neill
The credited and uncontroverted testimony disclosed
that on 29 April, Maines and Sanders signed union cards
in the presence and with the knowledge of their immedi-
ate supervisor, Foreman Sanders According to Haines,
Maines and Sanders were told at the outset that their
employment was not permanent. I credit the denials of
Maines and Sanders. In crediting them, it is noted, inter
alia, that their testimony was internally consistent with
the entire General Counsel's case and that Maines and
Sanders were otherwise responsive and plausible. Thus, I
credit their denials and I find that Haines did not convey
any message to them suggesting a limited tenure of em-
ployment
In the total circumstances of this case, noting particu-
larly the various reasons advanced by Respondent for
discharging O'Neill found here to be pretextual (previ-
ously discussed), I find that an inference of illegal motive
la Haines when asked how strong a factor was the Earp's claim in his
decision to terminate O'Neill replied "it was just one factor in making the
decision because the Earp thing had been going on since January " (Tr
260, emphasis added ) However, Haines later asserted that Earp's claim
was "considered as a major part of the decision" to terminate O'Neill
(Tr 328, emphasis supplied) I find that Haines, by assigning such vastly
different assessments, is still another factor tending to show the unrehabi-
Iny of Haines' testimony
3. The 8(a)(1) allegations
In essence, it is alleged that Respondent violated Sec-
tion 8(a)(1) by informing replacement employees that the
strikers were fired, that if Respondent were forced to
recall the strikers they would be fired again, that if the
Union won an election, the replacements would lose
their jobs; and, that the replacement employees should
refuse to sign union papers and stay away from the
Union
The record disclosed that approximately 3-1/2 weeks
after the strike commenced and while the strike was still
in effect, Respondent began hiring replacements In June,
the replacements had reached 11 or 12 in number, the
first two having been hired on 29 May Haines required
all these replacements to sign a written acknowledge-
ment that in pertinent part stated as follows:
At the time of my employment I was told that I
would be a permanent replacement, and that I
would maintain my job if and when the strike ends.
I understand that if "the Murd Company" is re-
quired to rehire the people on strike because of the
labor laws, or enters into a settlement with Team-
sters # 115 my job may not be permanent. [R Exh
10]
The first group of replacements was given such state-
ments within a week after they were hired, while those
hired subsequently, had to sign at the time they were
hired These statements generated a good deal of confu-
sion resulting in Haines conducting two separate meet-
ings in June, at the behest of the replacements, to explain
MURD INDUSTRIES
their employment status as well as the status of the strik-
ers.
Holiday testified that Haines told the replacements of
an upcoming union election that if the Union lost, all the
replacement employees would continue to be employed
but if the Union won Haines would take back some of
the strikers and some of the replacement employees
would have to leave 14
Further, Holiday testified that Haines stated that even
if he had to deal with the Union, he was not going to
employ those striking employees engaged in picketing.
According to Holiday, Haines has also told him at the
time he was hired, that his job was "permanent" and that
(Haines), would not take back the striking employees be-
cause of the "hassle they were putting him through "
Lister recalled (after examining his affidavit) that
Haines had pointed out to the replacements that they
outnumbered the strikers and encouraged them to vote
against the Union.15 Lister also ascribed to Haines (as
had Holiday), a statement to the effect that the strikers
had been fired.1e
Finally, Lister (after reviewing his affidavit) ascribed
certain statements to Foreman Sanders alleged by the
General Counsel to be violative of Section 8(a)(1) Thus,
Lister testified, without contradiction, that Sanders told
him at one of these June meetings that the Union might
ask him to sign some papers and that it would be "good"
for him to stay away Lister also testified, without con-
tradiction, that if the Union lost the election, the replace-
ment employees would be permitted to keep their jobs
Sanders pointed out (as had Haines), that there were
more replacements than strikers and, as such, they could
defeat the Union
According to Hardy, Haines' remarks about the conse-
quences of a union election amounted to "If the Union
win[s], we [replacement employees] lose work " Hardy
also noted that Haines had pointed out the numerical ma-
jority of the replacements over the striking employees
and urged them to vote against the Union. At another
meeting, as testified by Hardy, Haines told the replace-
ment employees that if a court ordered him to take back
the striking employees, he would fire them after the first
mistake
The Respondent contends, that the testimony of Holi-
day, Lister, and Hardy, where in conflict with the testi-
14 Holiday testified more fully regarding Haines ' remarks after perus-
ing an affidavit he had given to the Board approximately 2 months prior
to the instant hearing (G C Exh II )
15 Lister reaffirmed that the information contained in his affidavit is
truthful (Tr 185, 187)
16 On cross-examination Lister acknowledged that it was "possible"
that Haines used the term "replaced" rather than "flied" In eithei case, I
find that Haines conveyed to the replacement employees that Respondent
had fired the strikers As noted previously, Holiday testified that Haines
told him that the strikers had been fired Further, Lister, in explaining
more fully Haines' remarks testified that Haines conveyed to him that the
strikers "don't exist" and that the replacement employees then working
"now will be permanent employees " As I have found that the strikers
were involved in an unfair labor practice strike they could not be perma-
nently replaced white they were lawfully participating in that strike In
the total circumstance of this case, I find that Haines ' statement regarding
the status of the strikers was coercive and violative of Sec 8(a)(1) See
National Microneiics, 277 NLRB 993 (1985), compare Eagle Comtronics
Inc, 263 NLRB 515 (1982) (An employer may tell its employees that
economic strikers can be permanently replaced )
871
mony of Haines, is incredible and should be rejected I
cannot agree. It is noted, for example, that replacement
employees, Holiday and Lister, at the time they testified
were still employed by Respondent. As such, they clear-
ly testified against their self-interest,'7 a factor long rec-
ognized by the Board not to be lightly disregarded See,
e.g, Unarco, Inc, 197 NLRB 489, 491 (1972); Gateway
Transportation, 193 NLRB 47, 48 (1971); Georgia Rug
Mill, 131 NLRB 1304, 1305 In. 2 (1961). While Holiday,
Lister, and Hardy had difficulties expressing themselves
and at times were even incoherent, I find that they strug-
gled largely because of educational shortcomings and/or
language limitations rather than intent to mislead or be
untruthful Significantly, their testimony was internally
consistent with other credited testimony and, in certain
key areas, the testimony was corroborated even by
Haines On the other hand, for reasons previously de-
tailed, I have generally found Haines to be an unreliable
witness, particularly in those areas where his testimony
was not credibly corroborated.
Haines, when cross-examined, testified that he told the
replacement employees of a potential loss of their jobs if
the Union won the election (Tr 307-308). I reject Re-
spondent's contention that "Haines' statements were per-
fectly lawful exercises of his free speech under Section
8(c) of the Act."18 Where, as here, employees are told
that their future employment turns on the success or fail-
ure of the union to win an election, I find that such a
message clearly tends to discourage union activity within
the meaning of Section 8(a)(l) See Kona 60 Minute
Photo, 277 NLRB 867 (1985) As testified by Hardy, after
Haines told the replacement employees about the conse-
quences of a union victory: "Everybody was saying that
they would vote against the Union."
In sum, on the basis of the credited testimony and to-
tality of circumstances, I find that the Respondent violat-
ed Section 8(a)(1) by informing the replacement employ-
ees that the striking employees were fired; that if Re-
spondent was forced to employ the striking employees it
would discharge them again; and, that the jobs of re-
placement employees turned on whether the Union won
an election. As for the remaining allegation, I find that
the record does not establish by a preponderance of
credible evidence that Foreman Sanders coercively
threatened employee Lister with unspecified reprisals if
they signed union papers or if they failed to stay away
from the Union As testified by Lister, Sanders told him
that someone might want him "to sign some papers or
something" and that it is "good" to stay away from the
Union I find that the statement by itself is far too ambig-
uous to reach the level of a coercive threat.19 Accord-
ingly, I shall recommend that this allegation be dismissed.
17 In Holiday's case, Respondent's counsel asked him on cross-exami-
nation, "Do you understand that if the Labor Board orders the strikers
back, you may not have a job at Murd1"
18 Sec 8 (c) in pertinent part provides "The expressing of any views,
argument, or opinion should not constitute or be evidence of an
unfair labor practice, if such expression contains no threat of reprisal or
force or promise of benefit "
19 Given Lister's apparent difficulties with language, I am unwilling to
rely on his affidavit, where even there, his statement is less than complete
Continued
872 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The 8(a)(5) allegations
a. Recognition allegation
The record disclosed that, on 29 April, the Union had
secured 9 signed authorization cards from Respondent's
total complement of 10 employees That same day,
Union Representatives Henninger and Oliver, while in
possession of those signed union 'cards, demanded recog-
nition from Haines as the exclusive bargaining represent-
ative of Respondent's production and maintenance em-
ployees 20 It is alleged that "[o]n or about 29 April 1986,
Respondent, acting through Arthur Haines recognized
the Union as the exclusive representative of the Unit."
Contrary to the General Counsel, I find that Haines had
not granted recognition as alleged
It is undisputed that on the day in question (29 April),
Henninger and Oliver appeared at Haines' office without
appointment and handed him a recognition agreement to
sign. They demanded that Haines recognize the Union
and offered to demonstrate their majority status on the
basis of signed union cards The credited testimony dis-
closed that while Haines had noticed that either Oliver
or Henninger held a stack of union cards, he, Haines, re-
fused to examine those cards 21 Haines credibly testified
that he told the union representatives that "after I came
back from vacation, we can sit down and discuss what
you are talking about but right now, I am not going to do
anything " (Emphasis added.) This is essentially the same
account provided by Henninger who testified in perti-
nent part as follows:
Haines said that we caught him suddenly by sur-
prise but that he was getting ready to go away on
vacation and that he thought we'd be able to
work it out but he didn't want to do anything until he
returned from vacation. [Emphasis added ]
Thus, it is clear from Haines' account, as substantially
corroborated by Henninger, that Haines was not willing
to take any action, no less granting recognition, until he
returned from his vacation Haines' refusal to do "any-
thing" until he returned from vacation is far different
from the conduct undertaken by the employees in Travel-
ways, Inc, 267 NLRB 1332 (1983), relied on by the Gen-
eral Counsel. There, unlike the instant case, the employer
asked to examine the signed authorization cards and
"then proceeded to look at each card and call out the
employee's name " The union's majority in Travelways
having been thereby established, the parties set a date for
a "negotiating meeting " In such circumstances, the
union there regarded the respondent's commitment to
enter negotiations as tantamount to explicit recognition,
on this subject Similarly, I have not relied on Holiday's affidavit as af-
firmative evidence (contrary to counsel for the General Counsel), in
those instances where his recollection had not been refreshed or where
the affidavit otherwise is in conflict with his testimony
20 The parties stipulated and I find that Respondent's production and
maintenance employees with the traditional exclusions comprise an ap-
propriate unit for collective-bargaining purposes
2i Haines' denial that he examined the union cards is largely corrobo-
rated by Camillo Giusti Giusti testified credibly that Haines and the
union representatives, were in his view virtually the entire time and he
did not see Haines "handle" the union cards
although the employer had not uttered the term As
such, the union, shortly thereafter, wrote to the Board
requesting to withdraw its representation petition, which
had been filed prior to its meetings with the employer
(supra at 1334).
Here, unlike Travelways, the union representatives first
filed their representation petition immediately after their
meeting with Haines . Had the union representatives re-
garded Haines' willingness to discuss the situation (on his
return from vacation) as recognition, I find it highly un-
likely that they would have filed a representation peti-
tion 22 In short, I find that the Respondent had not
granted recognition on 29 April as alleged
I am also unpersuaded and reject the General Coun-
sel's contention that the Respondent granted recognition
and bargained collectively with the Union after 29 April
While I have credited the testimony of Henninger and
Oliver over Haines' denial with regard to the latter's sig-
nature appearing on the recognition agreement, I find
that Haines at all material times made it clear to the
Union that he was withholding recognition until he had
more time to contemplate its ramifications Further,
Haines made it clear that he had to have some idea of
the cost factors. Compare Trevose Family Shoe Store, 235
NLRB 1229, 1231-1232 (1978) (Board found that recog-
nition was not conferred even where cards were exam-
ined)
The credited testimony disclosed that on 13 May, Hen-
ninger and Oliver first noticed Haines' signature on the
recognition agreement (2 weeks after their initial meet-
ing). During that hiatus, inter alia, Respondent's employ-
ees had struck to protest the discharges of O'Neill,
Haines, and Sanders (found here violative of Sec. 8(a)(3))
and Haines had been away on vacation. As the employ-
ees were not striking for union recognition and as Haines
credibly testified that he had not examined the union au-
thorization cards, I find that the Union had not demon-
strated its majority status to Haines, albeit, the Union of-
fered to prove such status. In these circumstances, with-
out more, I do not find that the act of signing a recogni-
tion agreement precludes raising a question concerning
representation Compare S. Abraham & Sons, 193 NLRB
523 (1971) (an executed recognition agreement did not
bar representation petitions in the absence of a previous-
ly demonstrated showing of majority) When Haines re-
turned to work from vacation on 12 May, all his unit em-
ployees were still on strike
Haines met with the union representatives on 12 and
13 May in an effort to end the strike but he refused to
"recognize" and "bargain" before he knew what it
would cost him Oliver, in turn, told Haines that he
wanted the recognition agreement before he would talk
about cost factors. Oliver also pointed out to Haines that
he could not tell him what the Union wanted because
"we haven't talked to the members yet " As testified by
Oliver, Haines replied, "I'm not going to give you recog-
nition right now, until I find out what you're going to
22 The Union never contended that the filing of the petition manifested
an interest in securing the benefits of a Board certification
MURD INDUSTRIES
ask for" Oliver told Haines to set up a meeting with
Henninger to "get this straightened out "
As testified by Henninger, when Haines asked for the
recognition agreement, Haines responded that "he
wanted to think about it some more "
Haines agreed to meet Henninger at the union office
on 15 May "to get the thing straightened out" The
former was accompanied by McClemmy; Henninger was
joined by employee Dennis Haines still refused to turn
over an executed recognition agreement Even Hen-
ninger's account tends to confirm that Haines' principal
concern was the cost factor before he would commit
himself to recognition and bargaining over the substan-
tive terms of a contract. As testified by Henninger,
Haines told him that "the most important to him was
money I'm still a small employer . . in order to sur-
vive, you can't kill me with money." Henninger insisted
on following the union practice of negotiating language
before discussing any money items.
The record disclosed that the principals spent some 2
hours discussing mainly satisfactorily language rather
than substantive provisions and they had not reached any
of the money items when Haines ended the meeting. The
parties did not meet again
I find in the circumstances of this case, noting particu-
larly that the parties merely discussed contract language
generally, and did not "negotiate" in any substantive
sense,23 that Haines, by his statements and conduct at
the aforenoted meeting did not reach the level of confer-
ring recognition
In sum, I do find that the Respondent had,not granted
recognition to the Union, a fortiori, it could not have un-
lawfully withdrawn recognition Accordingly, I shall
recommend that this allegation be dismissed
b. Gtssel bargaining order remedy
The General Counsel contends that a Gissel bargaining
order is warranted "because the traditional remedies for
the Section 8(a)(1) and (3) violations . will not erase
the lingering effects of Respondent's unlawful conduct
and allow employees to register an uncoerced choice
concerning union representation " In NLRB v. Gissel
Packing Co., 395 U S. 575 (1969), the Supreme Court
identified two categories of cases in which a remedial
bargaining order would be warranted. The first such cat-
egory (Gissel 1) involves "`exceptional' cases marked by
`outrageous' and `pervasive' unfair labor practices which
destroy the possibility of a fair election" (395 US at
613-614) The second category (Gissel II) involves less
"exceptional cases" marked by "less pervasive practices "
As to Gissel II type cases the Court stated as follows-
If the Board finds that the possibility of erasing the
effects of past practices and of ensuring a fair elec-
tion (or a fair rerun) by the use of traditional reme-
dies, though present, is slight and that employee
sentiment once expressed through cards would, on
21 The distinction is significant See, e g , National Metalcrafters, 276
NLRB 90 (1985), remanded sub nom Auto Workers 449 v NLRB, 802
F 2d 969 (7th Or 1986) (A contractual obligation to "discuss" a decision
to relocate a plant was not tantamount to an obligation to "negotiate ")
873
balance, be better protected by a bargaining order,
then such an order should issue 395 U S at (614-
615)
I find that here Respondent's unfair labor practices in
terms of severity and lingering effects on employees are
at least encompassed by the Gissel II test thereby justify
a remedial bargaining order 24
First, it is noted that Haines unlawfully discharged
three of the union cardsigners within 3 days of the
Union's demand for recognition, which at the time, rep-
resented 30 percent of the bargaining unit It has long
been noted that discriminatory discharges within the
meaning of Section 8(a)(3) constitute misconduct "going
to the very heart of the Act." NLRB v Entwistle Mfg.
Co, 120 F.2d 532, 536 (4th Cir 1941). Recently, the
Board had again recognized "that unlawful discharge or
layoff is one of the most flagrant and severe acts an em-
ployer can take to dissuade employees from selecting a
bargaining representative " Groves Truck & Trailer, 281
NLRB 1194, 1196 (1986).
The news regarding the unlawful discharges was dis-
seminated within a few days to the other unit employees
who thereupon engaged in an unfair labor practice strike
in protest of the discharges As noted previously, the Re-
spondent's unfair labor practices also touched all the re-
placements Thus, Haines, inter alia, illegally informed
the replacements that the strikers (found here to be
unfair labor practice strikers) had been replaced and/or
fired. Haines' coercive statements were not merely con-
fined to the status of strikers, he also illegally informed
the replacements that their future employment turned on
the outcome of the union election The effect of such co-
ercive statements is "heightened" when, as here, they are
made, in the main, by the owner and top management of-
ficial, who is readily perceived as possessing the ability
to carry out his unlawful threats See Long-Airdox Co.,
277 NLRB 1157 (1985).
In the total circumstances of this case, noting the small
size of the unit (10 employees); that 30 percent of the
unit had been discriminatorily discharged, that virtually
all unit employees, strikers, and replacements were var-
iously touched by Respondent's coercive threats, and,
that most of the unfair labor practices were committed
by Respondent's highest official and owner, I find that
the holding of a fair election by the use of traditional
remedies is slight Having discontinued the traditional
remedies, I further find that the employees' uncoerced
choice of representative, previously expressed by signed
union cards, on balance, could be better protected by the
issuance of a Gissel remedial order. See, e g., Quality Alu-
minum Products, 278 NLRB 338 (1986), Kona 60 Minute
Photo, 277 NLRB 867, Studio S.J. T , 277 NLRB 1189
(1985); Long-Airdox Co, supra As the Union clearly rep-
resented an uncoerced majority appropriate unit, when
on 29 April, it demanded recognition, and noting that
Respondent commenced its unfair labor practices on 2
24 The Respondent, in its brief, largely ignores the Girsel It category
of cases by arguing "[a]t the very minimal, the unfair labor practices al-
leged herein are not the outrageous and pervasive kind normally required
to justify a bargaining order under Gavel "
874 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
May (discharging O'Neill, Maines, and Sanders), I fur-
ther find that Respondent violated Section 8(a)(5) by re-
fusing to recognize and bargain with the Union from the
date it commenced its unfair labor practices. See Regency
Manor Nursing Home, 275 NLRB 1261 fn. 5 (1985); see
generally Trading Port, 219 NLRB 298, 300-301 (1975).
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth in section II,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close, in-
timate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act
by:
(a) Coercively informing the replacement employees
that the striking employees were fired.
(b) Coercively informing the replacement employees
that if Respondent were forced to employ the striking
employees , it would discharge them again.
(c) Informing replacement employees that their future
employment turned on defeating the Union at an elec-
tion.
4. The Respondent violated Section 8(a)(3) and (1) of
the Act by discharging Patrick O 'Neill , William Mames,
and Johnny Sanders because of their support of the
Union.
5. The Respondent 's employees commenced an unfair
labor practice strike on 5 May 1986 which strike was
caused and prolonged by the unlawful discharge of the
employees named above in paragraph 4.
6. The following unit is appropriate for collective bar-
gaining within the meaning of Section 9(b) of the Act:
All production and maintenance employees em-
ployed by the Respondent at its Philadelphia, Penn-
sylvania facility ; but excluding office clerical em-
ployees, guards and supervisors as defined in the
Act.
7 On 29 April 1986 , at the time the Union demanded
recognition from the Respondent , the Union had already
obtained signed union authorization cards from a majori-
ty of Respondent 's employees in the bargaining unit de-
scribed above in paragraph 6.
8. Since about 2 May 1986 , when the Respodent com-
menced engaging in unfair labor practices , the Union has
been the exclusive representative of the Respondent's
employees in the unit described above in paragraph 6 for
purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
9. Since about 2 May 1986, the Respondent has violat-
ed Section 8(a)(5) and ( 1) of the Act by refusing to rec-
ognize and bargain with the Union as the exclusive col-
lective-bargaining representative of its employees in the
above-described unit.
10. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
11. The Respondent did not engage in any unfair labor
practices not specifically found here.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices , I shall recommend that it be
required to cease and desist therefrom and take certain
affirmative action necessary to effectuate the policies of
the Act.
With regard to my findings that the Respondent discri-
minatorily discharged Patrick O'Neill, William Maines.
and Johnny Sanders in violation of Section 8(a)(3) and
(1) of the Act, it is noted that the General Counsel does
not dispute that Respondent made an unconditional offer
of reinstatement to O'Neill and Maines (see G .C Br 60,
fn. 27; Tr. 103). Accordingly, I shall not recommend that
Respondent be required to offer reinstatement to O'Neill
and Maines . See Quality Aluminum Products, supra, 278
NLRB at fn . 3. However, as the record does not disclose
that Respondent unconditionally offered to reinstate
Johnny Sanders and noting that Respondent 's employees
are engaged in an ongoing unfair labor practice strike in
protest of the discharge of all three employees , I find, in
agreement with the General Counsel, that O'Neill and
Sanders did not forfeit all their reinstatement rights. Ac-
cordingly , O'Neill, Sanders, and the other unfair labor
practice strikers , on application , are entitled to immediate
reinstatement even if they have been replaced. See
Redway Carriers, 274 NLRB 1359, 1360 (1985). To
remedy the unlawful discharge of employee Sanders, I
shall recommend , inter alia , that Respondent offer him
immediate and full reinstatement to his former position
or, if that position no longer exists, to a substantially
equivalent job, without prejudice to his seniority or
other rights and privileges.
Further, I shall recommend that the Respondent make
whole employees O'Neill, Maines, and Sanders for any
loss of earnings and other benefits they may have suf-
fered as a result of the discrimination against them, by
payment of a sum equal to that which they would have
earned absent the discrimination , with the backpay com-
puted as prescribed in F. W Woolworth Co, 90 NLRB
289 (1950), with interest to be computed in the manner
prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987). I shall also recommend that any reference to
their terminations be removed from their employment
records.
Having found that the Respondent violated Section
8(a)(5) and ( 1) of the Act as of 2 May 1986, I shall rec-
ommend that it cease and desist and to recognize and
bargain on request with the Union as the exclusive bar-
gaining representative of the unit employees
MURD INDUSTRIES 875
Noting that the Board does not routinely include a vi-
sitatorial clause to monitor compliance, I am unpersuad-
ed that any special circumstances exist here to warrant
such a provision, as requested by counsel for the General
Counsel See Kal Contracting Co, 284 NLRB 722 (1987);
Holiday Inn East, 281 NLRB 573 (1986), Pence Construc-
tion Co, 281 NLRB 322 (1986) Accordingly, I shall not
recommend that a visitatorial clause be encompassed by
the remedy
Finally, noting the gravity of the misconduct commit-
ted by the Respondent, including the discriminatory dis-
charges of 30 percent of the bargaining unit, I shall rec-
ommend that it cease and desist therefrom and "in any
other manner" from interfering with the rights of em-
ployees guaranteed under Section 7 of the Act. See
Hickmott Foods, 242 NLRB 1357 (1979), see also Groves
Truck & Trailer, supra; Studio S.J. T , Quality Aluminum
Products, supra, cf. Gem Urethane Corp, 284 NLRB 1349
(1987)
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed25
ORDER
The Respondent, Murd Industries, Inc, Philadelphia,
Pennsylvania, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Coercively informing replacement employees that
the striking employee were fired
(b) Coercively informing replacement employees that
if Respondent were forced to employ the striking em-
ployees, it would discharge them again
(c) Informing replacement employees that their future
employment turned on defeating the Union at an elec-
tion.
(d) Discharging, laying off, or otherwise discriminat-
ing against employees because of their union activities
and sympathies.
(e) Refusing to recognize and bargain with the Team-
sters Union Local No 115 a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive collective-bargain-
Ing representative in the following unit
All production and maintenance employees em-
ployed by the Respondent at its Philadelphia, Penn-
sylvania facility, but excluding office clerical em-
ployees, guards and supervisors as defined in the
Act
(a) Offer Johnny Sanders immediate and full reinstate-
ment to his former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
his seniority or any other rights and privileges previously
enjoyed
(b) Provide immediate and full reinstatement to Patrick
O'Neill, William Mames, and any of the other unfair
labor practice strikers, to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to any rights and priviledges previous-
ly enjoyed, on application by them, even if it requires
discharging their replacements
(c) Make Patrick O'Neill, William Maines, and Johnny
Sanders whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them in
the manner set forth heremabove in the remedy section
of this decision.
(d) Remove from its files any reference to the layoffs
or discharges of Patrick O'Neill, William Maines, and
Johnny Sanders, and notify them in writing that this has
been done and that evidence of this unlawful separation
from employment will not be used as a basis for future
personnel action against them
(e) Recognize and, on request, bargain with the above-
named labor organization as the exclusive collective-bar-
gaining representative of its employees in the bargaining
unit set forth above with respect to wages, hours, and
other terms and conditions of employment and, if an un-
derstanding is reached, embody such understanding in a
signed agreement
(f) Post at its Philadelphia, Pennsylvania facility,
copies of the attached notice marked "Appendix."26
Copies of the notice, on forms provided by the Regional
Director for Region 4, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
IT IS FURTHER ORDERED that the consolidated com-
plaint be dismissed insofar as it alleges violations of the
Act not specifically found here
26 if this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
(t) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
25 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT coercively inform our replacement em-
ployees that we have fired our striking employees
WE WILL NOT coercively inform our replacement em-
ployees that if we were forced to employ the striking
employees, we would discharge them again
WE WILL NOT inform our replacement employees that
their future employment turns on defeating the Union at
an election.
WE WILL NOT discharge, layoff, or otherwise discrimi-
nate against employees because of their union activities
and sympathies.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the Act
WE WILL offer Johnny Sanders immediate and full re-
instatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights and privileges
as previously enjoyed.
WE WILL provide immediate and full reinstatement to
Patrick O'Neill, William Maines, and any other unfair
labor practice strikers, to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to any rights and privilegdes previous-
ly enjoyed, on application by them, even if it requires
discharging their replacements.
WE WILL make Patrick O'Neill, William Maines, and
Johnny Sanders whole for any loss of earnings and other
benefits suffered as a result of our discrimination against
them
WE WILL remove from our files any references to the
layoffs or discharges of Patrick O'Neill, William Maines,
and Johnny Sanders, and notify them in writing that this
has been done and that evidence of their unlawful sepa-
ration from employment will not be used as a basis for
future personnel action against them
WE WILL recognize and bargain with Teamsters Union
Local No 115 a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica as the exclusive representative of our employees in
the appropriate unit with respect to wages, hours, and
other terms and conditions of employment and, if an un-
derstanding is reached, embody such understanding in a
signed agreement The appropriate unit is.
All production and maintenance employees em-
ployed by Murd Industries, Inc, at its Philadelphia,
Pennsylvania facility; but excluding office clerical
employees, guards and supervisors as defined in the
Act
MURD INDUSTRIES, INC.